Title of Regulation: 14VAC5-335. Rules Governing Claims-Made Liability Insurance Policies (amending 14VAC5-335-10 through 14VAC5-335-60; adding 14VAC5-335-23, 14VAC5-335-27, 14VAC5-335-45).

Statutory Authority: §§ 12.1-13 and 38.2-223 of the Code of Virginia.

Effective Date: October 1, 2018.

Agency Contact: Eric Lowe, Policy Advisor, Bureau of Insurance, State Corporation Commission, P.O. Box 1157, Richmond, VA 23218, telephone (804) 371-9628, FAX (804) 371-9873, or email eric.lowe@scc.virginia.gov.

Summary:

The amendments update the rules to reflect current positions and practices for filing and approval, establish greater clarity for ease of application, and modernize the rules to create more consistency with the regulatory requirements of other states. The amendments (i) clarify that the rules do not apply to incidental claims-made liability insurance, (ii) make a distinction between a basic extended reporting period and a supplemental reporting period and identify clear standards for each, (iii) change the required consumer notice provided with a claims-made insurance policy, (iv) clarify and simplify the extended reporting period requirements upon policy termination, (v) reduce the period of time for the mandatory offer of a supplemental extended reporting period, (vi) add a requirement for the insurer to provide loss information to the insured, and (vii) clarify certain prohibitions and minimum standards.

In response to comments regarding the proposed changes to the regulation, additional amendments (i) clarify that the rules do not apply to nonadmitted insurers; (ii) adjust definitions; (iii) clarify requirements for a basic extended reporting period, eliminating the time limitation; (iv) clarify offer and effective date provisions for any supplemental extended reporting period; and (v) more clearly define requirements to provide loss information.

AT RICHMOND, MARCH 13, 2018

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. INS-2017-00202

Ex Parte: In the matter of
Amending the Rules Governing
Claims-Made Liability Insurance Policies

ORDER ADOPTING AMENDMENTS TO RULES

By Order to Take Notice ("Order") entered October 2, 2017, insurers and interested persons were ordered to take notice that subsequent to November 30, 2017, the State Corporation Commission ("Commission") would consider the entry of an order adopting amendments to rules set forth in Chapter 335 of Title 14 of the Virginia Administrative Code, entitled "Rules Governing Claims-Made Liability Insurance Policies" ("Rules"), which amend the Rules at 14 VAC 5-335-10 through 14 VAC 5-335-60 and add new Rules at 14 VAC 5-335-23, 14 VAC 5-335-27 and 14 VAC 5-335-45, unless on or before November 30, 2017, any person objecting to the adoption of the amendments to the Rules filed a request for a hearing with the Clerk of the Commission ("Clerk").

The Order also required insurers and interested persons to file their comments in support of or in opposition to the proposed amendments to the Rules with the Clerk on or before November 30, 2017.

The Bureau of Insurance ("Bureau") held a meeting on November 2, 2017 to allow for insurers and interested persons to discuss and address questions about the proposed Rules with Bureau staff. In addition to comments and questions that the Bureau received during this meeting, the Commission received timely filed comments from the American Insurance Association, Insurance Services Office, Inc., Markel Corporation, National Risk Retention Association and the Physician Insurers Association of America. No request for a hearing was filed.

The Bureau considered the comments received and responded to them in its Statement of Position in Response to Comments ("Response to Comments"), which the Bureau filed with the Clerk on March 1, 2018. In its Response to Comments, the Bureau recommended numerous revisions to the proposed amendments that address many of the comments received.

The amendments to Chapter 335 are necessary to update the Rules to reflect current positions and practices for filing and approval, establish greater clarity for ease of application and modernize the Rules to create more consistency with the regulatory requirements of other states.  The proposed amendments and revisions as a result of the comments clarify and further define that the Rules do not apply to non-admitted insurers or to incidental claims-made liability insurance, make a distinction between a basic extended reporting period and a supplemental reporting period and identify clear standards for each, clarify and simplify provisions to offer a supplemental extended reporting period and the effective date for such period, add requirements for the insurer to provide loss information to the insured, and clarify certain prohibitions and minimum standards.

NOW THE COMMISSION, having considered the proposed amendments, the comments filed, the Bureau's Response to Comments and all the amendments to the Rules, is of the opinion that the attached amendments to the Rules should be adopted as amended, effective October 1, 2018.

Accordingly, IT IS ORDERED THAT:

(1) The amendments to the Rules Governing Claims-Made Liability Insurance Policies at Chapter 335 of Title 14 of the Virginia Administrative Code, which amend the Rules at 14 VAC 5-335-10 through 14 VAC 5-335-60 and add new Rules at 14 VAC 5-335-23, 14 VAC 5-335-27 and 14 VAC 5-335-45, which are attached hereto and made a part hereof, are hereby ADOPTED effective October 1, 2018.

(2) The Bureau shall provide notice of the adoption of the amendments to the Rules to all insurers licensed by the Commission to write insurance as defined in §§ 38.2-117, 38.2-118 and 38.2-111 B of the Code, as well as all interested persons.

(3) The Commission's Division of Information Resources shall cause a copy of this Order, together with the final amended Rules, to be forwarded to the Virginia Registrar of Regulations for appropriate publication in the Virginia Register of Regulations.

(4) The Commission's Division of Information Resources shall make available this Order and the attached amendments to the Rules on the Commission's website: http://www.scc.virginia.gov/case.

(5) The Bureau shall file with the Clerk of the Commission an affidavit of compliance with the notice requirements of Ordering Paragraph (2) above.

(6) This case is dismissed, and the papers herein shall be placed in the file for ended causes.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to: Office of the Attorney General, Division of Consumer Counsel, 202 N. 9th Street, 8th Floor, Richmond, Virginia 23219-3424; and a copy hereof shall be delivered to the Commission's Office of General Counsel and the Bureau of Insurance in care of Deputy Commissioner Rebecca Nichols.

14VAC5-335-10. Scope.

The provisions of this chapter shall apply to all policies of liability insurance, as defined in §§ 38.2-117, 38.2-118, and subsection B of § 38.2-111 of the Code of Virginia, that limit the time allowed for reporting claims arising out of injury, damage, or wrongful act or omission covered by the policy. Any such policy shall be deemed to be a claims-made liability insurance policy for purposes of this chapter. The provisions of this chapter shall apply to all claims-made liability insurance policies delivered or issued for delivery in the Commonwealth [ by an admitted insurer ] to become effective on or after January 1, 2005 [ July October ] 1, 2018.

This chapter shall not apply to incidental claims-made liability insurance.

14VAC5-335-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

[ "Admitted insurer" means an insurer licensed in the Commonwealth to engage in the business of insurance. An admitted insurer does not include any surplus lines insurer. ]

"Basic extended reporting period" means an [ extension of the time allowed for reporting claims, after termination of any claims-made liability coverage, for injury, damage, or wrongful act or omission that occurred prior to termination of the coverage and that, except for the requirement to report claims during the policy period, was otherwise covered by the policy automatic extended reporting period provided at no additional premium charge ].

"Claims-made liability insurance policy" means an insurance policy or endorsement providing coverage for the insured's liability for injury, damage, or wrongful act or omission occurring prior to the termination of coverage but subsequent to any applicable retroactive date, provided the claim for such injury, damage, or wrongful act or omission is first made during the policy period or any extended reporting period.

[ "Extended reporting period" means an extension of the time allowed for reporting claims, after termination of any claims-made liability ] coverage, [ policy for injury, damage, or wrongful act or omission that occurred prior to termination of the ] coverage [ policy and that, except for the requirement to report claims during the policy period, was otherwise covered by the policy. ]

"Incidental claims-made liability insurance" means any claims-made liability [ insurance that is coverage ] contained in [ any or attached to a ] policy [ of insurance in which the coverage is provided with either no separate or identifiable charge or with a premium amount that does not exceed 10% of the total premium charged for the policy providing liability insurance on other than a claims-made basis ].

"Medical [ malpractice professional liability ] insurance" means insurance coverage against the legal liability of the insured and against loss, damage, or expense incident to a claim arising out of the death or injury of any person as the result of [ actual or alleged ] negligence in rendering or failing to render professional service by any provider of health care.

"Policy" means a coverage part, form, or endorsement that is contained in a contract of insurance.

"Retroactive date" means the date on or after which injury, damage, or wrongful act or omission may occur and be covered under a claims-made liability insurance policy.

"Supplemental extended reporting period" means an extended reporting period that is available for the insured to purchase.

[ "Unimpaired limit of liability" means a limit equal to the dollar amount shown as the aggregate limit in the declarations (i) at the inception of the policy period or (ii) as amended in the policy thereafter, and in force at the time of the termination of the policy. ]

14VAC5-335-23. Required notice.

The following notice, or a notice that is substantially similar, shall be provided in writing with each new and renewal claims-made liability insurance policy [ issued or delivered in this Commonwealth ]:

You have purchased claims-made liability insurance. When this insurance terminates, the insurer will send an offer with the available options for purchasing the supplemental extended reporting period. You may be entitled to receive information on claims under this policy. If you have any questions regarding your claims-made coverage or the importance of purchasing the supplemental extended reporting period, please contact your insurance company or your insurance agent.

14VAC5-335-27. Standards for basic extended reporting period.

An insurer may offer a basic extended reporting period [ that is included in the policy and incurs no additional charge. The basic extended reporting period shall not be longer than 12 months. If a basic extended reporting period is offered, it shall be included in the policy ].

14VAC5-335-30. Insurers Requirement to offer supplemental extended reporting period coverage.

A. Every claims-made liability insurance policy [ issued or delivered in this Commonwealth ] shall include a provision which shall offer to that the named insured extended reporting period coverage upon termination of claims-made coverage may purchase a supplemental extended reporting period in accordance with the provisions of 14VAC5-335-40 upon policy termination. To the extent that policy limits apply separately to each named insured, each named insured shall be separately entitled to purchase an a supplemental extended reporting period. Termination Policy termination of claims-made coverage shall include:

1. Cancellation or nonrenewal of the policy by the insurer or the insured;

2. Advancement of any applicable retroactive date; or

3. Renewal of the coverage policy on other than a claims-made basis.

B. The insured shall be allowed at least 30 days after termination in which to purchase the extended reporting period coverage.

C. Notwithstanding the foregoing, B. No offer of a supplemental extended reporting period coverage does not have to be offered is required if cancellation or nonrenewal of a claims-made liability insurance policy is due to:

1. Nonpayment of premium;

2. Failure to comply with terms or conditions of the policy; or

3. Fraud.

C. Each claims-made liability insurance policy shall contain provisions that clearly state when the supplemental extended reporting period will and will not be offered.

D. No insurer shall deliver or issue for delivery a claims-made liability insurance policy in this Commonwealth unless such policy contains the provisions set forth in subsections A, B and C of this section Upon a policy termination [ in accordance with as set forth in ] subsection A of this section, the insurer shall offer in writing to the named insured a supplemental extended reporting period. The offer shall include the duration and premium of the [ minimum ] required supplemental extended reporting period coverage in 14VAC5-335-40 and [ all any ] other available duration and premium options. The offer shall be sent no earlier than the date of notification of termination of the policy and not later than 15 days after the termination of the policy. The named insured shall have a minimum of 30 days from [ the termination of the ] policy [ termination ] to purchase the supplemental extended reporting period.

E. The following notice, or a notice that is substantially similar, shall be provided in writing with each new and renewal claims-made liability insurance policy issued or delivered in this Commonwealth:

You have purchased a claims-made liability insurance policy. Please read this policy carefully to understand your coverage. There are certain circumstances in which you must be provided the opportunity to purchase an extended reporting period for reporting claims. These are explained in your policy. If you have any questions regarding the cost of an extended reporting period or the available options under the extended reporting period, please contact your insurance company or your insurance agent.

14VAC5-335-40. Extended Supplemental extended reporting period requirements.

A. Each insurer shall offer a supplemental extended reporting period to allow an extension of the time [ allowed ] to report claims as follows:

1. For medical [ professional liability malpractice ] insurance, an unlimited [ supplemental ] extended reporting period shall be offered with unimpaired limits of liability and shall be effective the same day as the termination of the policy; or

2. For all other claims-made liability insurance policies, a two-year [ one-year supplemental ] extended reporting period [ of at least one year ] shall be offered.

However, this shall not prohibit In addition, the insurer from may also offering offer greater or more limited extensions of time in which to report claims. No insurer shall deliver or issue for delivery a claims-made liability insurance policy in this Commonwealth unless such policy contains the applicable provisions set forth in this subsection.

B. Each insurer shall offer an extended reporting period that includes unimpaired limits of liability equal to the limits of the policy being extended. However, this shall not prohibit the insurer from also offering higher or lower limits of liability applicable to the extended reporting period. No insurer shall deliver or issue for delivery a claims-made liability insurance policy in this Commonwealth unless such policy contains the applicable provisions set forth in this subsection. This subsection shall not apply to excess or umbrella liability coverage, or environmental impairment or pollution liability coverage, or to a limited extended reporting period of 60 days or less provided automatically without an additional premium charge; nor shall this subsection apply to any class, line, subclassification, or market segment exempted from this requirement by order of the commission [ In the event the policy contains no basic extended reporting period or the insured purchases reinstated limits A supplemental extended reporting period purchased with unimpaired limits of liability ] in whole or in part [ , the supplemental extended reporting period ] shall be effective the same day as the termination of the policy. [ In all other instances, the policy provisions shall establish the effective date of the supplemental extended reporting period as (i) the same day as the termination of the policy if no basic extended reporting period applies, or (ii) the same day the basic extended reporting period expires if a basic extended reporting period applies. ]

C. When an insurer excludes any existing coverage from a claims-made liability insurance policy and the policy remains in effect or is renewed, the insurer shall offer an extended reporting period for such coverage on the same basis that the extended reporting period would be offered if the entire policy were being terminated. For purposes of this subsection, the exclusion of any existing coverage shall not include changes in policy limits or deductibles.

14VAC5-335-45. Requirement to provide loss information.

[ A. ] If the policy is issued with an aggregate limit [ , the:

1. The ] insurer shall provide loss information to the named insured with the notice of cancellation or nonrenewal of the [ claims-made ] policy [ ; ] or

[ 2. The named insured may request loss information within 120 days from the date of policy renewal. The insurer shall provide such loss information ] within 15 calendar days of the insured's request.

[ B. ] The loss information shall [ include the aggregate amount of payments and reserves subject to the aggregate limit for any closed claims, open claims, or notices of occurrence for the period to which the aggregate applies be sufficient to inform the named insured regarding the remaining or potentially remaining limits of coverage available under the terminating policy.

C. This section shall apply to medical professional liability insurance only if the insurer offers an extended reporting period with other than unimpaired limits of liability ].

14VAC5-335-50. Prohibitions.

A. Once purchased by the insured, The supplemental extended reporting period coverage shall not be cancelled canceled by the insurer without the consent of the insured except for nonpayment of premium or fraud. No extended reporting endorsement shall be delivered or issued for delivery in this Commonwealth unless it contains this provision.

B. Except with respect to a limited extended reporting period of 60 days or less provided automatically without an additional premium charge, an insurer shall be prohibited from voiding No insurer shall deny coverage under a supplemental extended reporting period coverage on the basis that other applicable insurance coverage is in effect. However, this shall not prohibit an An insurer from applying may apply the supplemental extended reporting period coverage as excess over such other insurance.

14VAC5-335-60. Severability.

If any provision of this chapter or the its application thereof to any person or circumstance is for any reason held to be invalid by a court, the remainder of the this chapter and the application of such provision the provisions to other persons or circumstances shall not be affected thereby.

Title of Regulation: 18VAC30-21. Regulations Governing Audiology and Speech-Language Pathology (amending 18VAC30-21-40, 18VAC30-21-90, 18VAC30-21-100).

Statutory Authority: § 54.1-2400 of the Code of Virginia.

Effective Date: May 2, 2018.

Agency Contact: Leslie L. Knachel, Executive Director, Board of Audiology and Speech-Language Pathology, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4630, FAX (804) 527-4471, or email audbd@dhp.virginia.gov.

Summary:

The amendments (i) establish a one-time reduction in renewal fees in 2018, (ii) eliminate renewal fees for 2019, and (iii) change the renewal deadline from December 31 to June 30 beginning in the year 2020.

18VAC30-21-40. Fees required.

A. The following fees shall be paid as applicable for licensure:

B. Fees shall be made payable to the Treasurer of Virginia and shall not be refunded once submitted.

C. The renewal fees due by December 31, 2018, shall be as follows:

Part III
Renewal and Continuing Education

18VAC30-21-90. Renewal requirements.

A. A person who desires to renew his license shall, not later than December 31 of each year 2018, submit the renewal notice and applicable renewal fee. Beginning with calendar year 2020, the renewal of licensure deadline shall be June 30 of each year. For calendar year 2019, no renewal is required. A licensee who fails to renew his license by the expiration date shall have a lapsed license, and practice with a lapsed license may constitute grounds for disciplinary action by the board.

B. A person who fails to renew his license by the expiration date may renew at any time within one year of expiration by submission of a renewal notice, the renewal fee and late fee, and statement of compliance with continuing education requirements.

18VAC30-21-100. Continuing education requirements for renewal of an active license.

A. In order to renew an active license, a licensee shall complete at least 10 contact hours of continuing education prior to December 31 of the renewal date each year. Up to 10 contact hours of continuing education in excess of the number required for renewal may be transferred or credited to the next renewal year. One hour of the 10 hours required for annual renewal may be satisfied through delivery of professional services, without compensation, to low-income individuals receiving health services through a local health department or a free clinic organized in whole or primarily for the delivery of those services. One hour of continuing education may be credited for three hours of providing such volunteer services, as documented by the health department or free clinic.

B. Continuing education shall be activities, programs, or courses related to audiology or speech-language pathology, depending on the license held, and offered or approved by one of the following accredited sponsors or organizations sanctioned by the profession:

1. The Speech-Language-Hearing Association of Virginia or a similar state speech-language-hearing association of another state;

2. The American Academy of Audiology;

3. The American Speech-Language-Hearing Association;

4. The Accreditation Council on Continuing Medical Education of the American Medical Association offering Category I continuing medical education;

5. Local, state, or federal government agencies;

6. Colleges and universities;

7. International Association of Continuing Education and Training; or

8. Health care organizations accredited by the Joint Commission on Accreditation of Healthcare Organizations.

C. If the licensee is dually licensed by this board as an audiologist and speech-language pathologist, a total of no more than 15 hours of continuing education are required for renewal of both licenses with a minimum of 7.5 contact hours in each profession.

D. A licensee shall be exempt from the continuing education requirements for the first renewal following the date of initial licensure in Virginia under 18VAC30-21-60.

E. The licensee shall retain all continuing education documentation for a period of three years following the renewal of an active license. Documentation from the sponsor or organization shall include the title of the course, the name of the sponsoring organization, the date of the course, and the number of hours credited.

F. The board may grant an extension of the deadline for continuing education requirements, for up to one year, for good cause shown upon a written request from the licensee prior to the renewal date of December 31 each year.

G. The board may grant an exemption for all or part of the requirements for circumstances beyond the control of the licensee, such as temporary disability, mandatory military service, or officially declared disasters.

H. The board shall periodically conduct an audit for compliance with continuing education requirements. Licensees selected for an audit conducted by the board shall complete the Continuing Education Activity and Assessment Form and provide all supporting documentation within 30 days of receiving notification of the audit.

I. Failure to comply with these requirements may subject the licensee to disciplinary action by the board.

Title of Regulation: 18VAC85-20. Regulations Governing the Practice of Medicine, Osteopathic Medicine, Podiatry, and Chiropractic (amending 18VAC85-20-22).

Statutory Authority: § 54.1-2400 of the Code of Virginia.

Effective Date: May 2, 2018.

Agency Contact: William L. Harp, M.D., Executive Director, Board of Medicine, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4621, FAX (804) 527-4429, or email william.harp@dhp.virginia.gov.

Summary:

The amendments establish a one-time fee reduction for limited and restricted licenses applicable to the renewal cycle for 2018.

18VAC85-20-22. Required fees.

A. Unless otherwise provided, fees established by the board shall not be refundable.

B. All examination fees shall be determined by and made payable as designated by the board.

C. The application fee for licensure in medicine, osteopathic medicine, and podiatry shall be $302, and the fee for licensure in chiropractic shall be $277.

D. The fee for a temporary authorization to practice medicine pursuant to clauses (i) and (ii) of § 54.1-2927 B of the Code of Virginia shall be $25.

E. The application fee for a limited professorial or fellow license issued pursuant to 18VAC85-20-210 shall be $55. The annual renewal fee shall be $35. For renewal of a limited professorial or fellow license in 2016 2018, the fee shall be $30. An additional fee for late renewal of licensure shall be $15.

F. The application fee for a limited license to interns and residents pursuant to 18VAC85-20-220 shall be $55. The annual renewal fee shall be $35. For renewal of a limited license to interns and residents in 2016 2018, the fee shall be $30. An additional fee for late renewal of licensure shall be $15.

G. The fee for a duplicate wall certificate shall be $15; the fee for a duplicate license shall be $5.00.

H. The fee for biennial renewal shall be $337 for licensure in medicine, osteopathic medicine, and podiatry and $312 for licensure in chiropractic, due in each even-numbered year in the licensee's birth month. An additional fee for processing a late renewal application within one renewal cycle shall be $115 for licensure in medicine, osteopathic medicine, and podiatry and $105 for licensure in chiropractic. For renewal of licensure in 2018, the fee shall be $270 for licensure in medicine, osteopathic medicine, and podiatry and $250 for licensure in chiropractic.

I. The fee for requesting reinstatement of licensure or certification pursuant to § 54.1-2408.2 of the Code of Virginia or for requesting reinstatement after any petition to reinstate the certificate or license of any person has been denied shall be $2,000.

J. The fee for reinstatement of a license issued by the Board of Medicine pursuant to § 54.1-2904 of the Code of Virginia that has expired for a period of two years or more shall be $497 for licensure in medicine, osteopathic medicine, and podiatry ($382 for reinstatement application in addition to the late fee of $115) and $472 for licensure in chiropractic ($367 for reinstatement application in addition to the late fee of $105). The fee shall be submitted with an application for licensure reinstatement.

K. The fee for a letter of verification of licensure shall be $10, and the fee for certification of grades to another jurisdiction by the board shall be $25.

L. The fee for biennial renewal of an inactive license shall be $168, due in the licensee's birth month. An additional fee for late renewal of licensure shall be $55 for each renewal cycle.

M. The fee for an application or for the biennial renewal of a restricted volunteer license shall be $75, due in the licensee's birth month. An additional fee for late renewal of licensure shall be $25 for each renewal cycle. For renewal of a restricted volunteer license in 2016 2018, the fee shall be $65.

N. The fee for a returned check shall be $35.

Title of Regulation: 18VAC90-19. Regulations Governing the Practice of Nursing (amending 18VAC90-19-80; repealing 18VAC90-19-90, 18VAC90-19-100).

Statutory Authority: § 54.1-2400 of the Code of Virginia.

Effective Date: May 2, 2018.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Summary:

Pursuant to Chapter 108 of the 2016 Acts of Assembly, the amendments conform Virginia's rules for the issuance of a multistate licensure privilege to the rules of the Nurse Licensure Compact.

Part II
Multistate Licensure Privilege

18VAC90-19-80. Issuance of a license with a multistate licensure privilege.

A. To be issued a license with a multistate licensure privilege by the board or to change the primary state of residency, a nurse currently licensed in Virginia or a person applying for licensure in Virginia shall submit a declaration stating that his primary residence is in Virginia. Evidence of a primary state of residence may be required to include:

1. A driver's license with a home address;

2. A voter registration card displaying a home address;

3. A federal or state tax return declaring the primary state of residence;

4. A Military Form No. 2058 – state of legal residence; or

5. A W-2 from the United States government or any bureau, division, or agency thereof indicating the declared state of residence.

B. A nurse on a visa from another country applying for licensure in Virginia may declare either the country of origin or Virginia as the primary state of residence. If the foreign country is declared as the primary state of residence, a single state license shall be issued by Virginia.

C. A nurse changing the primary state of residence from another party state to Virginia may continue to practice under the former party state license and multistate licensure privilege during the processing of the nurse's licensure application by the board for a period not to exceed 90 days.

1. If a nurse is under a pending investigation by a former home state, the licensure application in Virginia shall be held in abeyance and the 90-day authorization to practice stayed until resolution of the pending investigation.

2. A license issued by a former party state shall no longer be valid upon issuance of a license by the board.

3. If the board denies licensure to an applicant from another party state, it shall notify the former home state within 10 business days, and the former home state may take action in accordance with the laws and regulations of that state

D. A license issued by a party state is valid for practice in all other party states, unless clearly designated as valid only in the state that issued the license. When a party state issues a license authorizing practice only in that state and not authorizing practice in other party states, the license shall be clearly marked with words indicating that it is valid only in the state of issuance shall comply with the regulations adopted by the Interstate Commission of Nurse Licensure Compact Administrators (https://www.ncsbn.org/enlcrules.htm) and provisions of Article 6.1 (§ 54.1-3040.1 et seq.) of Chapter 30 of Title 54.1 of the Code of Virginia in effect at the time of the application.

18VAC90-19-90. Limitations of a multistate licensure privilege. (Repealed.)

A. The board shall include in all disciplinary orders that limit practice or require monitoring the requirement that the licensee subject to the order shall agree to limit practice to Virginia during the period in which the order is in effect. A nurse may be allowed to practice in other party states while an order is in effect with prior written authorization from both the board and boards of other party states.

B. An individual who had a license that was surrendered, revoked, or suspended or an application denied for cause in a prior state of primary residence may be issued a single state license in a new primary state of residence until such time as the individual would be eligible for an unrestricted license by the prior state of adverse action. Once eligible for licensure in the prior state, a multistate license may be issued.

18VAC90-19-100. Access to information in the coordinated licensure information system. (Repealed.)

A licensee may submit a request in writing to the board to review the public data relating to the licensee maintained in the coordinated licensure information system. In the event a licensee asserts that any related data is inaccurate, the burden of proof shall be upon the licensee to provide evidence that substantiates such claim. The board shall verify and correct inaccurate data in the information system within 10 business days.

Title of Regulation: 18VAC105-20. Regulations Governing the Practice of Optometry (amending 18VAC105-20-20, 18VAC105-20-60, 18VAC105-20-70).

Statutory Authority: §§ 54.1-2400 and 54.1-3223 of the Code of Virginia.

Effective Date: May 2, 2018.

Agency Contact: Leslie L. Knachel, Executive Director, Board of Optometry, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4508, FAX (804) 527-4471, or email leslie.knachel@dhp.virginia.gov.

Summary:

The amendments (i) provide a one-time reduction in renewal fees in 2018, (ii) eliminate renewal fees for 2019, and (iii) change the renewal fees deadline from December 31 to March 31 beginning in the year 2020.

18VAC105-20-20. Fees.

A. Required fees.

B. Unless otherwise specified, all fees are nonrefundable.

C. From October 31, 2015 2018, to December 31, 2015 2018, the following fees shall be in effect:

18VAC105-20-60. Renewal of licensure; reinstatement; renewal fees.

A. Every person authorized by the board to practice optometry shall, on or before December 31 of every year 2018, submit a completed renewal form and pay the prescribed annual licensure fee. Beginning with calendar year 2020, the renewal of licensure deadline shall be March 31 of each year. For calendar year 2019, no renewal is required.

B. It shall be the duty and responsibility of each licensee to assure that the board has the licensee's current address of record and the public address, if different from the address of record. All changes of address or name shall be furnished to the board within 30 days after the change occurs. All notices required by law or by these rules and regulations are to be deemed to be validly tendered when mailed to the address of record given and shall not relieve the licensee of the obligation to comply.

C. The license of every person who does not complete the renewal form and submit the renewal fee by December 31 of each year may be renewed for up to one year by paying the prescribed renewal fee and late fee, provided the requirements of 18VAC105-20-70 have been met. After December 31 the renewal deadline, a license that has not been renewed is lapsed. Practicing optometry in Virginia with a lapsed license may subject the licensee to disciplinary action and additional fines by the board.

D. An optometrist whose license has been lapsed for more than one year and who wishes to resume practice in Virginia shall apply for reinstatement. The executive director may grant reinstatement provided that:

1. The applicant can demonstrate continuing competence;

2. The applicant has satisfied current requirements for continuing education for the period in which the license has been lapsed, not to exceed two years; and

3. The applicant has paid the prescribed reinstatement application fee.

E. The board may require an applicant who has allowed his license to expire and who cannot demonstrate continuing competency to pass all or parts of the board-approved examinations.

18VAC105-20-70. Requirements for continuing education.

A. Each license renewal shall be conditioned upon submission of evidence to the board of 20 hours of continuing education taken by the applicant during the previous license period. A licensee who completes more than 20 hours of continuing education in a year shall be allowed to carry forward up to 10 hours of continuing education for the next annual renewal cycle.

1. The 20 hours may include up to two hours of recordkeeping for patient care, including coding for diagnostic and treatment devices and procedures or the management of an optometry practice, provided that such courses are not primarily for the purpose of augmenting the licensee's income or promoting the sale of specific instruments or products.

2. For optometrists who are certified in the use of therapeutic pharmaceutical agents, at least 10 of the required continuing education hours shall be in the areas of ocular and general pharmacology, diagnosis and treatment of the human eye and its adnexa, including treatment with new pharmaceutical agents, or new or advanced clinical devices, techniques, modalities, or procedures.

3. At least 10 hours shall be obtained through real-time, interactive activities, including in-person or electronic presentations, provided that during the course of the presentation, the licensee and the lecturer may communicate with one another.

4. A licensee may also include up to two hours of training in cardiopulmonary resuscitation (CPR).

5. Two hours of the 20 hours required for annual renewal may be satisfied through delivery of professional services, without compensation, to low-income individuals receiving health services through a local health department or a free clinic organized in whole or primarily for the delivery of those services. One hour of continuing education may be credited for three hours of providing such volunteer services, as documented by the health department or free clinic.

B. Each licensee shall attest to fulfillment of continuing education hours on the required annual renewal form. All continuing education shall be completed prior to December 31 the renewal deadline unless an extension or waiver has been granted by the Continuing Education Committee. A request for an extension or waiver shall be received prior to December 31 of the renewal deadline each year.

C. All continuing education courses shall be offered by an approved sponsor or accrediting body listed in subsection G of this section. Courses that are not approved by a board-recognized sponsor in advance shall not be accepted for continuing education credit. For those courses that have a post-test requirement, credit will only be given if the optometrist receives a passing grade as indicated on the certificate.

D. Licensees shall maintain continuing education documentation for a period of not less than three years. A random audit of licensees may be conducted by the board, which will require that the licensee provide evidence substantiating participation in required continuing education courses within 14 days of the renewal date.

E. Documentation of hours shall clearly indicate the name of the continuing education provider and its affiliation with an approved sponsor or accrediting body as listed in subsection G of this section. Documents that do not have the required information shall not be accepted by the board for determining compliance. Correspondence courses shall be credited according to the date on which the post-test was graded as indicated on the continuing education certificate.

F. A licensee shall be exempt from the continuing competency requirements for the first renewal following the date of initial licensure by examination in Virginia.

G. An approved continuing education course or program, whether offered by correspondence, electronically or in person, shall be sponsored, accredited, or approved by one of the following:

1. The American Optometric Association and its constituent organizations.

2. Regional optometric organizations.

3. State optometric associations and their affiliate local societies.

4. Accredited colleges and universities providing optometric or medical courses.

5. The American Academy of Optometry and its affiliate organizations.

6. The American Academy of Ophthalmology and its affiliate organizations.

7. The Virginia Academy of Optometry.

8. Council on Optometric Practitioner Education (COPE).

9. State or federal governmental agencies.

10. College of Optometrists in Vision Development.

11. The Accreditation Council for Continuing Medical Education of the American Medical Association for Category 1 credit.

12. Providers of training in cardiopulmonary resuscitation (CPR).

13. Optometric Extension Program.

H. In order to maintain approval for continuing education courses, providers or sponsors shall:

1. Provide a certificate of attendance that shows the date, location, presenter or lecturer, content hours of the course and contact information of the provider or sponsor for verification. The certificate of attendance shall be based on verification by the sponsor of the attendee's presence throughout the course, either provided by a post-test or by a designated monitor.

2. Maintain documentation about the course and attendance for at least three years following its completion.

I. Falsifying the attestation of compliance with continuing education on a renewal form or failure to comply with continuing education requirements may subject a licensee to disciplinary action by the board, consistent with § 54.1-3215 of the Code of Virginia.

Title of Regulation: 20VAC5-309. Rules for Enforcement of the Underground Utility Damage Prevention Act (amending 20VAC5-309-150).

Statutory Authority: §§ 12.1-13 and 56-265.30 of the Code of Virginia.

Public Hearing Information: A public hearing will be held upon request.

Public Comment Deadline: May 17, 2018.

Agency Contact: Massoud Tahamtani, Director, Utility and Railroad Safety, State Corporation Commission, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9980, FAX (804) 371-9734, or email massoud.tahamtani@scc.virginia.gov.

Summary:

The proposed amendments allow for trenchless excavation across gravity fed sewer mains and combination storm/sanitary sewer system utility lines without exposing the facilities if (i) a video camera designed to pass through the underground facilities is able to communicate the location, depth, diameter, and condition of those facilities to the excavator and (ii) certain other safety and notification requirements are met. The State Corporation Commission initiated this proposed action in response to a petition for rulemaking.

AT RICHMOND, MARCH 5, 2018

PETITION OF

COLUMBIA GAS OF VIRGINIA, INC.

CASE NO. URS-2018-00005

For rulemaking to revise requirements
for trenchless excavation set forth in
20VAC5-309-150 of the Rules for
Enforcement of the Underground Utility
Damage Prevention Act

ORDER ESTABLISHING PROCEEDING

On January 23, 2018, Columbia Gas of Virginia, Inc. ("Petitioner"), filed a Petition for Rulemaking ("Petition") requesting that the State Corporation Commission ("Commission") initiate a rulemaking for the limited purpose of revising 20VAC5-309-150 ("Rule 150") of the Commission's Rules for Enforcement of the Underground Utility Damage Prevention Act¹ that prescribes requirements for trenchless excavation. The proposed revisions ("Proposed Rule") are attached hereto as Attachment A.²

The Petitioner states that the Proposed Rule would (1) provide for greater flexibility when conducting trenchless excavation that crosses gravity fed sewer mains and combination storm/sanitary sewer system utility lines; and (2) enhance the safety and efficiency of conducting such excavations.³ According to the Petitioner, the Proposed Rule recognizes that technology developed since the Commission's adoption of Rule 150 allows for safe trenchless excavation practices when crossing such utility lines without exposing them by hand digging.⁴

The Petitioner asserts that technological advancements have enabled the precise location of gravity fed sewer mains and storm drains without exposing those facilities, as required by Rule 150 (6).⁵ The Petition states that video cameras designed to pass through these underground facilities are able to communicate with locating equipment at ground level to provide the precise location, depth, and diameter of these utility lines. Video images also show the condition of the facilities, revealing conditions such as cross bores and root damage.⁶ According to the Petitioner, this technology enables the precise knowledge of depth, diameter, location, and condition of gravity fed sewer mains and storm drains to be known without exposing those facilities by hand digging.⁷

According to the Petitioner, the Proposed Rule offers an alternative to the current requirement to expose all utility lines in the bore path prior to conducting trenchless excavation.⁸ The Petitioner states that the Proposed Rule would allow trenchless excavation crossing gravity fed sewer mains and combination storm/sanitary sewer systems to occur without exposing those utility lines if the enumerated steps are taken to ensure proper notification, documentation, and safety precautions.⁹ The steps set forth in the Proposed Rule include: (1) the receipt of documentation that the utility line operator has been notified of the excavation; (2) that the excavator has determined the depth, diameter, and condition of the utility lines using appropriate locating technology and a sewer system camera; (3) that a clearance of at least three feet is maintained between the bore path and the utility lines; (4) that the post-bore condition of the utility lines is reviewed using a sewer system camera; (5) that the excavator notify the utility line operator(s) of any damage found; and (6) that the excavator maintain all video documentation for 12 months and make it available to the utility line operator(s) and the Division of Utility and Railroad Safety.¹⁰

The Petitioner asserts that modifications in the Proposed Rule ensure that the use of camera technology to locate gravity fed sewer mains and combination storm/sanitary sewer systems is as safe and effective as exposing such utility lines by hand digging. It is further asserted that the use of camera technology where feasible is more efficient and allows excavators to maintain a safe distance from vehicular traffic by eliminating the need for hand digging in road ways.¹¹

NOW THE COMMISSION, upon consideration of the matter, is of the opinion and finds that a proceeding should be established to consider adopting the proposed revision to Rule 150. Attachment A to this Order contains the Proposed Rule. We will direct that notice of the Proposed Rule be given to interested persons and that interested persons and the Commission Staff ("Staff") be provided an opportunity to file written comments on, propose modifications or supplements to, or request a hearing on the Proposed Rule. We will further direct that the Petitioner serve a copy of this Order upon each member of the Commission's Underground Utility Damage Prevention Advisory Committee ("Advisory Committee") and each entity listed in Attachment B. Finally, we will direct the Petitioner to formally present the Petition at the Virginia Damage Prevention Conference scheduled to be held April 24-26, 2018.¹²

Accordingly, IT IS ORDERED THAT:

(1) This case is docketed and assigned Case No. URS-2018-00005.

(2) The Commission's Division of Information Resources shall forward a copy of this Order Establishing Proceeding to the Registrar of Regulations for publication in the Virginia Register of Regulations.

(3) On or before March 23, 2018, the Commission's Division of Information Resources shall cause the following notice to be published in newspapers of general circulation throughout the Commonwealth of Virginia: 

NOTICE TO THE PUBLIC OF A PETITION FOR RULEMAKING TO REVISE REQUIREMENTS FOR TRENCHLESS EXCAVATION SET FORTH IN RULE 20VAC5-309-150 OF THE STATE CORPORATION COMMISSION'S RULES FOR ENFORCEMENT OF THE UNDERGROUND UTILITY DAMAGE PREVENTION ACT

CASE NO. URS-2018-00005

On January 23, 2018, Columbia Gas of Virginia, Inc. ("Petitioner"), filed a Petition for Rulemaking ("Petition") requesting that the State Corporation Commission ("Commission") initiate a rulemaking for the limited purpose of revising 20VAC5-309-150 ("Rule 150") of the Commission's Rules for Enforcement of the Underground Utility Damage Prevention Act that prescribes requirements for trenchless excavation.

The Petitioner states that the proposed revisions ("Proposed Rule") would (1) provide for greater flexibility when conducting trenchless excavation that crosses gravity fed sewer mains and combination storm/sanitary sewer system utility lines; and (2) enhance the safety and efficiency of conducting such excavations.

The Petitioner asserts that technological advancements have enabled the precise location of gravity fed sewer mains and storm drains without exposing those facilities, as required by Rule 150 (6). The Petition states that video cameras designed to pass through these underground facilities are able to communicate with locating equipment at ground level to provide the precise location, depth, and diameter of these utility lines. Video images also show the condition of the facilities, revealing conditions such as cross bores and root damage. According to the Petitioner, this technology enables the precise knowledge of depth, diameter, location, and condition of gravity fed sewer mains and storm drains to be known without exposing those facilities by hand digging.

The Petitioner states that the Proposed Rule would allow trenchless excavation crossing gravity fed sewer mains and combination storm/sanitary sewer systems to occur without exposing those utility lines if the enumerated steps are taken to ensure proper notification, documentation, and safety precautions. The steps set forth in the Proposed Rule include: (1) the receipt of documentation that the utility line operator has been notified of the excavation; (2) that the excavator has determined the depth, diameter, and condition of the utility lines using appropriate locating technology and a sewer system camera; (3) that a clearance of at least three feet is maintained between the bore path and the utility lines; (4) that the post-bore condition of the utility lines is reviewed using a sewer system camera; (5) that the excavator notify the utility line operator(s) of any damage found; and (6) that the excavator maintain all video documentation for 12 months and make it available to the utility line operator(s) and the Division of Utility and Railroad Safety.

The Petitioner asserts that modifications in the Proposed Rule ensure that the use of camera technology to locate gravity fed sewer mains and combination storm/sanitary sewer systems is as safe and effective as exposing such utility lines by hand digging. It is further asserted that the use of camera technology where feasible is more efficient and allows excavators to maintain a safe distance from vehicular traffic by eliminating the need for hand digging in road ways.

Copies of the Petition and the Commission's Order Establishing Proceeding entered in this case may be obtained by submitting a written request to counsel for the Petitioner, Bryan D. Stogdale, Senior Counsel, NiSource Corporate Services Company, 1809 Coyote Drive, Chester, Virginia 23836. If acceptable to the requesting party, the Company may provide the documents by electronic means. Copies of these documents also shall be available for interested persons to review in the Commission's Document Control Center, located on the First Floor of the Tyler Building, 1300 East Main Street, Richmond, Virginia 23219, between the hours of 8:15 a.m. and 5 p.m., Monday through Friday, excluding holidays. Interested persons also may download unofficial copies from the Commission's website: http://www.scc.virginia.gov/case.

On or before May 17, 2018, any interested person may file written comments on the Petition with Joel H. Peck, Clerk, State Corporation Commission c/o Document Control Center, P.O. Box 2118, Richmond, Virginia 23218-2118. In the alternative, comments may be submitted with the Clerk of the Commission electronically by following the instructions found on the Commission's website: http://www.scc.virginia.gov/case. Compact discs or any other form of electronic storage medium may not be filed with the comments. All comments shall refer to Case No. URS-2018-00005.

On or before May 17, 2018, any interested person may request that the Commission convene a hearing on the Proposed Rule. If not filed electronically, an original and fifteen (15) copies of such request for hearing shall be filed with the Clerk of the Commission at the address set forth above. Requests for hearing shall refer to Case No. URS-2018-00005 and shall include: (i) a precise statement of the filing party's interest in the proceeding; (ii) a statement of the specific action sought to the extent then known; (iii) a statement of the legal basis for such action; and (iv) a precise statement why a hearing should be conducted in this matter.

A copy of any written comments and requests for hearing simultaneously shall be sent to counsel to the Petitioner at the address set forth above.

STATE CORPORATION COMMISSION

(4) On or before March 23, 2018, the Petitioner shall serve a copy of this Order upon each member of the Advisory Committee and each entity listed in Attachment B to this Order.

(5) The Petitioner shall formally present the Petition at the 2018 Virginia Damage Prevention Conference pursuant to the conference agenda made available by the Commission's Division of Utility and Railroad Safety.

(6) On or before April 9, 2018, the Petitioner shall file with Joel H. Peck, Clerk, State Corporation Commission, c/o Document Control Center, P.O. Box 2118, Richmond, Virginia 23218-2118, proof of the service required by Ordering Paragraph (4).

(7) On or before May 17, 2018, any interested person may file comments concerning whether the Commission should modify Rule 150 as requested in the Petition. All comments shall provide suggested changes, if any, to the Proposed Rule. Such comments shall be filed with the Clerk of the Commission at the address in Ordering Paragraph (6) or may be submitted electronically by following the instructions found on the Commission's website: http://www.scc.virginia.gov/case. Compact discs or any other form of electronic storage medium may not be filed with the comments. Comments shall refer to Case No. URS-2018-00005.

(8) On or before May 17, 2018, interested persons may request that the Commission convene a hearing on the Proposed Rule. Such request for hearing shall be filed with the Clerk of the Commission. If not filed electronically, the original and fifteen (15) copies of the request for hearing shall be submitted to the Clerk of the Commission at the address set forth in Ordering Paragraph (6). Requests for hearing shall refer to Case No. URS-2018-00005 and shall include: (i) a precise statement of the filing party's interest in the proceeding; (ii) a statement of the specific action sought to the extent then known; (iii) a statement of the legal basis for such action; and (iv) a precise statement why a hearing should be conducted in this matter.

(9) A copy of any written comments and request for hearing simultaneously shall be sent to counsel for the Petitioner, Bryan D. Stogdale, Senior Counsel, NiSource Corporate Services Company, 1809 Coyote Drive, Chester, Virginia 23836.

(10) On or before April 5, 2018, the Staff shall file any comments on, proposed modifications or supplements to, or requests for hearing on the Proposed Rule.

(11) On or before May 31, 2018, the Petitioner may file with the Clerk of the Commission any response in rebuttal to Staff comments, requests for hearing, and any comments filed by interested persons in this proceeding.

(12) This matter is continued generally pending further order of the Commission.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to: Bryan D. Stogdale, Senior Counsel, NiSource Corporate Services Company, 1809 Coyote Drive, Chester, Virginia 23836; C. Meade Browder, Jr., Senior Assistant Attorney General, Office of the Attorney General, Division of Consumer Counsel, 202 N. 9th Street, 8^th Floor, Richmond, Virginia 23219-3424; and a copy shall be delivered to the Commission's Office of General Counsel, Division of Utility and Railroad Safety, and the Division of Information Resources.

______________________________________

¹ 20VAC5-309-10 et seq.

² Attachment A reflects the Proposed Rule as filed by the Petitioner and modified consistent with Virginia Code Commission drafting recommendations.

³ Petition at 1.

⁴ Id.

⁵ Petition at 3.

⁶ Id.

⁷ Id.

⁸ Id. at 4.

⁹ Id.

¹⁰ Petition at 4; see also Attachment A.

¹¹ Petition at 4.

¹² An agenda for the conference will be published prior to the start of the conference on April 24, 2018.

20VAC5-309-150. Requirement for trenchless excavation.

A. Any person conducting trenchless excavation shall take all reasonable steps necessary to protect and support underground utility lines. These Except as provided in subsection B of this section, these steps shall include, but are not limited to the following:

1. The excavator should verify that all utility lines in the area are marked;

2. The excavator shall ensure that bore equipment stakes are installed at a safe distance from marked utility lines;

3. When grounding rods are used, the excavator shall ensure that they are installed at a safe distance (at least 24 inches plus the width of the utility line, if known) away from the marked or staked location of utility lines;

4. The excavator shall ensure sufficient clearance is maintained between the bore path and any underground utility lines during pullback;

5. The excavator shall give special consideration to water and sewer systems within the area that cannot be located accurately;

6. Unless prohibited by other laws, ordinances, regulations, or rules of governmental and regulatory authorities having jurisdiction, the excavator shall expose all utility lines which that will be in the bore path by hand digging to establish the underground utility line's location prior to commencing bore. For a parallel type bore, unless prohibited by other laws, ordinances, regulations, or rules of governmental and regulatory authorities having jurisdiction, the excavator shall expose the utility line by hand digging at reasonable distances along the bore path;

7. The excavator shall ensure the drill head locating device is functioning properly and within its specification;

8. The excavator shall visually check the drill head as it passes through potholes, entrances, and exit pits; and

9. If the depth indicated by the locating device is lower than the bottom of the pothole or pit, the excavator shall cease boring until the hole/pit hole or pit can be hand excavated further to maintain a visual inspection of the drill head.

B. Notwithstanding the requirements of subdivision A 6 of this section, any person conducting trenchless excavation crossing any gravity fed sewer main or combination storm/sanitary sewer system utility lines need not expose such utility lines by hand digging if, in addition to meeting the other applicable requirements set forth in subsection A of this section, the following steps are taken:

1. Prior to commencing a project, the excavator shall receive documentation from the utility line operator (such as, but not limited to, documentation through the permitting process) documenting that the operator has been notified of the proposed trenchless excavation and that trenchless excavation will be used to cross its underground utility line. The scope of a project shall not exceed the scope of a single notice of excavation;

2. Prior to commencing the boring process, the excavator shall determine (i) the depth of the utility line through appropriate locating technology and (ii) the diameter and condition of the utility line using a sewer system camera with video recording capability;

3. The excavator shall ensure that a clearance of at least three feet is maintained between the bore path and the utility line;

4. Using the same type of video equipment identified in subdivision B 2 of this section, after the bore has been completed, the excavator shall use a sewer system camera to determine the condition of the utility line and ensure that no cross bore or other damage has occurred;

5. The excavator shall immediately notify the utility line operator of any damage found; and

6. After the bore has been completed, the excavator shall make all video documentation available to the utility line operator and the division upon request. Such video documentation shall be maintained and made available for 12 months from the time of the bore.

C. The provisions of subsection B of this section shall apply only to gravity fed sewer mains or combination storm/sanitary systems that are considered "utility lines" as that term is defined in § 56-265.15 of the Act.